The Sounds of the Supremes: A Reply to Professor Yassky

I would like to thank David Yassky for his well-written response to my article.[1]
Over the last few years, I have had the pleasure of debating Professor Yassky
on several radio programs; his writing, like his discussions on the radio, is
thought-provoking, concise, and gentlemanly.

In my article in this symposium, I suggested that readers who think that the 1939
Miller case[2]
was the beginning and end of the Supreme Court's Second Amendment jurisprudence
should broaden their view by studying everything that the Supreme Court
has said about the Second Amendment.[3]
David Yassky, in reply, gives both me and the Supreme Court too much credit for
creativity, and for inventing novel approaches to the Second Amendment. Let's
start by discussing the credit that I do not deserve.

I. What's a Revisionist and What Do They Think?

Professor Yassky includes me in "a group of revisionist
scholars" who are promoting a "new paradigm" trying to overthrow the "dominant
view" of the Second Amendment.[4] Were the
Yassky/Kopel dialogue taking place in The Journal of Post-modern
Deconstruction, Professor Yassky's words would be high compliments, limited
only by his failure to credit me with "transgressing boundaries" But since we
are discussing law, which (unlike the writing ofJacques Derrida) is supposed to be intelligible, I must decline
the honor of being a "revisionist." Along with other Standard Model scholars of
the Second Amendment, I am merely continuing in a well-worn path of Second Amendment
analysis.

A. Who are the Revisionists?

The core of the Standard Model is that the Second
Amendment guarantees a right of all Americans (not just militia members) to own
and carry firearms. As to the contours of this right, the Standard Model is
well-settled on some points, and unsettled on others, as I will detail in the
next section.

The reason that "the Standard Model" is the standard model is that it has been in
use for as long as legal scholars have been writing about the Second Amendment.
Starting with St. George Tucker's American edition of Blackstone in 1803,
every legal scholar who wrote about the Second Amendment during the nineteenth
century wrote within the Standard Model. (Indeed, there was no other model.) These
scholars include St. George Tucker, William Rawle, Joseph Story, Henry St.
George Tucker, Francis Lieber, Thomas Cooley, Joel Tiffany, Timothy Farrar,
Joel Bishop, John Norton Pomeroy, Oliver Wendell Holmes, Jr., George Ticknor
Curtis, John C. Ordononaux, Henry Campbell Black, James Schouler, and John
Randolph Tucker. Nobody who wrote any surviving legal scholarship (whether in a
treatise or a law journal article) even disputed that the Second Amendment
guarantees a right of all American citizens—rather than a state's right,
or a right only of militia members.[5]

Legal scholars in the twentieth century, of course, were divided. From 1930 to 1970,
there were fewer than two dozen law journal articles written about the Second
Amendment, and those articles were sharply split on the meaning of the Second
Amendment.[6]

During the last three decades of the twentieth century, there was much more legal
scholarship published on the Second Amendment, and the large majority (but not
all) of these articles were within the Standard Model tradition. By the end of
the twentieth century, scholars as diverse as Laurence Tribe,[7]
William Van Alstyne,[8] Akhil Amar,[9]
Leonard Levy,[10]
and Sanford Levinson[11] had
published articles or treatises affirming the Standard Model. One would be hard-pressed
to find many other important constitutional issues on which all five of these
eminent scholars agree. Accordingly, it is the scholars such as Professor
Yassky—who imply that everyone in the above two paragraphs (from St. George
Tucker in 1803 to Laurence Tribe in 2000) is wrong—who deserve the title
"revisionist."

B. Who Thinks the Supreme Court is Wrong?

According to Professor Yassky, the Standard Model scholars "heretofore conceded that the
courts have rejected their approach."[12]
Standard Modelers, writes Professor Yassky, charge that "the courts (abetted by
the academy) have all-but-nullified the Amendment."[13]
Thus, Professor Yassky gives me credit for opening up "a second front" in the
Second Amendment argument.[14] I am hardly
so deserving of credit. To say that I "seek[] to open a second front" is like
saying that a G.I. who joined Patton's Third Army in March 1945 was seeking "to
open a second front" against the Germans. In fact, the so-called "second front"
on the Second Amendment has been open for about 125 years.

Contrary to Professor Yassky's (unfootnoted) assertion, the Standard Model scholars have
always argued that the Supreme Court supports their model. The Supreme Court's
first major Second Amendment case was the 1876 United States v. Cruikshank.[15]
After 1876, legal treatises on the Second Amendment continued to use the
Standard Model, and began citing Cruikshank and (after 1886) Presser[16]
as cases which showed the boundaries of the individual Second Amendment right
(that the right was a limit on federal action only). Almost all of the
nineteenth century authors who discussed the Supreme Court and the Second
Amendment used the Supreme Court cases to support the authors' position, and
none of the Standard Model scholars suggested that the Supreme Court decisions
were contrary to an individual right.[17]
Among modern Standard Model scholarship, argument that the Supreme Court cases
buttress the Standard Model are likewise ubiquitous.[18]
Indeed, the only Standard Model article which claims that the Supreme Court
disagrees with the Standard Model is a 1960 article in the West Virginia Law
Review.[19]

I will take credit for being the author of the first law journal article to look at
every Supreme Court case mentioning the Second Amendment; but to credit me with
inventing an entirely new argument is to grossly overstate my significance.

Standard Model scholars are also in agreement that since 1971, there have been a
plethora of cases in the lower federal courts that are inconsistent with the
Standard Model. And these lower courts are accused (sometimes in full-length
articles, sometimes in long parts of other articles) of nullifying both
the original intent of the Second Amendment and Supreme Court precedent.[20]

My immediate point is not about whether the Standard Model scholars are
correct to think that the Supreme Court has always agreed with them. My point is that
the Standard Model scholars have always thought that the Court did.

C. What Would a Meaningful Second Amendment Mean?

Professor Yassky writes that "the revisionists never quite specify just what a ‘personal' Second Amendment
would protect."[21]
This assertion is just as flatly wrong as Professor Yassky's claim that Standard
Model scholars are revisionists who think that the Supreme Court is against
them. To find what the Second Amendment protects (under the Standard Model) one
need only read Glenn Harlan Reynolds' Tennessee Law Review article "A Critical Guide to the Second Amendment."Since this is the article which coined the phrase "Standard Model,"
the article may be taken as a reasonable explication of the contours of the
Standard Model.[22]

The Standard Model scholars agree that the Second Amendment guarantees[23]
a right of ordinary citizens to own and carry firearms. Almost all of the
Standard Model scholars would include handguns, shotguns, and rifles within the
scope of the protection, although Don Kates argues for rifle bans in urban
areas.[24]
With a few exceptions, most of the scholars have no Second Amendment objection
to measures such as the federal instant background check for prospective gun
buyers. The "Compelling State Interest" and
"Least Restrictive Alternative" tests, which are well developed in
Supreme Court jurisprudence, provide an easy template for preserving gun
controls which make a genuine contribution to public safety without infringing
the rights of the blameless.

There are still unsettled issues regarding the boundaries of the Second Amendment (are
machine guns included?) and how much various degrees of
licensing/registration/waiting periods might infringe the Second Amendment. But
the existence of these unresolved issues at the edge of the Right to Arms does
not mean that Standard Model scholars have failed to detail what is in the
core. That First Amendment scholars in the 1930s or 1940s had not settled some
issues (e.g., the boundary line for obscenity; exactly what requirements were
appropriate for parade permits; how to treat non-verbal communication such as
arm bands) does not mean that those scholars failed to "specify" what the First
Amendment protects (most types of political and artistic speech, except for
incitement, according to those First Amendment scholars).

Nor is Professor Yassky correct to claim that the Standard Model, if judicially
implemented, would make it impossible to disarm people who are subject to
restraining orders for domestic violence.[25]
In the Emerson case, the federal district judge (whom Professor Yassky
accurately calls a follower of the Standard Model) explicitly stated that it is
not a Second Amendment violation to disarm a domestic violence perpetrator.[26]The problem with the statute in question,
the judge explained, was that the statute did not require any finding
that domestic violence had occurred, or might occur.[27]
In an amicus brief filed to the Fifth Circuit, in support of the trial court's
ruling, Academics for the Second Amendment (a Standard Model educational group)
and the more than 100 professors who signed the brief explained that if a
court made findings of danger based on sworn, credible evidence, then disarming
the man (or woman) who created the danger would not violate the Second
Amendment.[28]
This 1999 amicus brief was squarely in line with Sam Adams' proposal, at the
1788 Massachusetts Ratifying Convention, that a Bill of Rights be added to the
Constitution, specifying, that, inter alia, "the said Constitution be
never construed to authorize Congress to infringe the just liberty of the
press, or the rights of conscience; or to prevent the people of the United
States, who are peaceable citizens, from keeping their own arms. . ."[29]

D. Who's the Real Revisionist?

For decades, the scholarly Second Amendment debate has
been between those who believe that the Second Amendment guarantees an
individual right of all peaceable American citizens to possess firearms (the
Standard Model) and those who believe that the Second Amendment grants a right
to state governments, not to individuals (the "state's rights" theory, most
prominently advocated by Dennis Henigan and Carl Bogus).[30]
This state's rights theory has been popular in many, but not all, lower federal
courts, since the early 1970s. The first paragraph of Professor Yassky's
article accurately quotes a 1971 case in which the Sixth Circuit sneered at an
individual's complaint about the federal Gun Control Act of 1968; for, wrote
the Sixth Circuit, the Second Amendment "applies only to the right of the State
to maintain a militia and not to the individual's right to bear arms. . ."[31]

Now, David Yassky suggests that this decades-long debate has posed a false
dichotomy: the Second Amendment is intended to benefit states by letting them
have militias; under Professor Yassky's
"instrumental" reading of the Second Amendment, individuals have Second
Amendment rights if and only if those rights are exercised to benefit state
militias.[32]

Professor Yassky's amicus brief in the Emerson case sets forth this theory in more
detail.[33]
He acknowledges that, as a result of the Second Amendment, individuals have a
right to "keep" firearms in their homes.[34]
But what about the federal law which would send Dr. Emerson to jail, simply for
possessing a firearm in his house? The Yassky brief argues that since Dr.
Emerson was not a member of the Texas National Guard (even though Emerson is,
by Texas statute, a member of the Texas militia) there is no Second Amendment
problem with sending him (or, by implication, anyone else who is not a Guardsman)
to federal prison for owning a gun.[35]
And even if Dr. Emerson were in the National Guard, the Yassky brief continued,
he could still be disarmed (since the Texas Guard could assign him to a non-gun
job), and (by implication) many other Guardsmen could be disarmed, as long as
the Texas Guard was still able to function.[36]

Thus, Professor Yassky's highly constricted, "instrumental" interpretation of the
Second Amendment bears some resemblance to the Ninth Circuit's view of the
Tenth Amendment: nothing the Congress does to the states can violate the Tenth
Amendment, unless Congress prevents state governments from functioning.[37]

From the creation of the Second Amendment until 1915, no scholar suggested that the
Second Amendment meant what Professor Yassky says; in those days, the Standard
Model was the only scholarly model. Then, a 1915 article in the Harvard Law
Review took the first step in Professor Yassky's direction. Lucillius Emery
suggested that the Second Amendment should be interpreted to allow the
disarmament of everyone who was not eligible for militia service, including
women and minors.[38] Emery was
the first American legal scholar to suggest that the Second Amendment did not
protect all Americans (militia-eligible or not) who were entitled to
civil rights. Although the 1903 Dick Act, creating the modern National Guard,
had enrolled only a small part of the adult male population in the National
Guard, Emery acknowledged that the Second Amendment protected the entire
militia-eligible population (most adult males), rather than just members of the
National Guard.[39]

Emery's article, while provocative, never got much intellectual traction. For the next
80 years, articles in law reviews argued for either the Standard Model, or for
a rule which would prohibit disarming the National Guard because the Second
Amendment was a state's right, not an
individual right.

Then, in 1995, a closer precursor of Professor Yassky's theory was published. Andrew
Herz (a law professor at Touro, who has since departed the academy) argued in
the Boston University Law Review for what he called a "narrow individual
right" to join the National Guard.[40]
In Herz's view, the Second Amendment did not guarantee an individual's right to
possess a gun, but the Amendment did guarantee his right to join the National
Guard, wherein the government would give him a gun.[41]

Herz's article was undermined by its vicious personal attacks on scholars who
disagreed with him, and by a self-righteous, illogical tone so intense that he
managed to condemn the National Rifle Association for encouraging blacks to be
armed against white rioters and for not caring about the safety of
blacks.[42]
Moreover, Herz's theory, if seriously applied, would appear to deny the
National Guard the ability to enroll Guardsmen selectively, rather than accepting
all comers.

Professor Yassky's Emerson brief, even though it is a brief and not a law review
article, is a major step forward from Lucillius Emery and Andrew Herz. He makes
much more sophisticated use of original sources than do Emery and Herz; his
writing style is somewhat better than Emery's, and vastly better than Herz's
immature invective. When (I hope) Professor Yassky turns the brief into a law
journal article, he will have produced a major new theory of the Second
Amendment, and it will be a theory that demands a conscientious response from
Standard Model writers. And being an article which attempts to explain why
both major schools of thought on a constitutional subject are wrong, Professor
Yassky's future article will merit being called "revisionist." It will bethe kind of "fresh thinking" that tenure
review committees and law journal editors like so much. My article in this
symposium issue deserves no such honors; were a newspaper to summarize my
article, the headline would read: "Supreme Court Opinions Generally Agree with
Law Professor Opinions, Writer Says." Not much ground-breaking "revisionism"
there.

II. The Supreme Court Cases

In the 1886 Presser decision, the Supreme Court declined to make the Second
Amendment directly enforceable against the states, and implied that the right
to arms was not part of the Fourteenth Amendment's Privileges and Immunities.[43]
The Presser decision was, arguably, a follow-up of some dicta from the
1876 Cruikshank case.[44] Professor
Yassky writes that the Supreme Court's failure to incorporate the Second
Amendment is "something of an embarrassment" to Standard Model advocates.[45]
Annoying to some, perhaps, but not embarrassing.

The Supreme Court's failure to incorporate the Second Amendment is entirely consistent
with a strong individual right to arms (protected against federal action only),
just as the Supreme Court's failure to incorporate the grand jury clause of the
Fifth Amendment is fully consistent with a strong individual right to grand
jury indictment in federal court. Likewise, most of the criminal procedure
Amendments of the Bill of Rights were not incorporated before the 1960s, but
legal scholars before the 1960s did not claim that non-incorporation was some
proof that these Amendments did not guarantee "personal" rights.

To be sure, most of the Standard Model authors argue that the Supreme Court should
revisit Presser.[46]
But Nelson Lund, an important Standard Model author, writes that Presser
was rightly decided, and should be preserved.[47]
The Supreme Court's non-incorporation of the Second Amendment, so far, poses a
serious problem for gun owners in the six states which have no right to arms in
their state constitution, but non-incorporation does nothing to undercut the
Standard Model of a Second Amendment protecting a strong individual right
against federal infringement.

Professor Yassky takes issue with my treatment of Justice Harlan's dissent in Poe v.
Ullman. I had argued that Harlan's use of the right to keep and bear arms
in a list of individual rights, which could be incorporated against the
states, showed that Harlan recognized the Second Amendment as an individual
right.[48]

Professor Yassky points out that the Harlan quote tells us nothing about the "specific
contours" of the Second Amendment.[49]
Of course not. But it does tell us something about the core.

The
full scope of material to be consumed cannot be found in or limited by the
precise terms of the specific items elsewhere provided in Smith's list. This "material" is not a series of isolated things pricked out in terms such as
apples, beefsteak, batatas, cherries, Madeira, prosciutto, Popsicles, parsley,
sage, rosemary, thyme, sauerkraut, sushi, and so on.[50]

Most readers of the above paragraph have never used the word "batatas" in a
sentence, and the paragraph hardly gives the reader enough information to
discern the "specific contours" of "batatas." But does the paragraph supply
enough information to suggest the essence of "batatas"? Well, yes. Even
though the list uses English words (beefsteak, Popsicle) and foreign words
(prosciutto, sauerkraut, sushi), the reader can see that all of the other items
on the list are things that can be eaten. Therefore, it is reasonable to infer
that "batatas" are edible. And they are; "batatas" is Portuguese for "potatoes."

Likewise, on Justice Harlan's list, if everything else in the list is an individual
right, then it is reasonable to conclude that "the right to keep and bear arms"
is an individual right.

Professor Yassky is wrong to claim that Harlan's quote can be consistent with Yassky's "instrumental" (Guardsmen-only) theory. A Yassky Second Amendment would prevent
the federal government from entirely disarming the State Guards, but a Yassky
Second Amendment could do nothing to limit state disarmament of
citizens; since the Yassky Second Amendment is meant to benefit official active
state militias only, states can presumably do whatever they want with their militias,
including disarm them.[51] Harlan's
quote describes "the right to keep and bear arms" as a right which could(but in Harlan's view should not) be made enforceable against state
governments. Harlan's Second Amendment is consistent only with the Standard
Model. (Hardly a surprising result, given that Harlan's grandson, University of
Tennessee law professor Glenn Harlan Reynolds, coined the term "Standard Model."[52])

In the Yassky article, most of the Supreme Court cases cited in my article do not
receive the kind detailed response which Professor Yassky provided on Poe v.
Ullman and its progeny. He points out, quite correctly, that the Supreme
Court cases for which I discuss standing (and the Court's allowing individuals
to raise a Second Amendment claim) are consistent with both the Standard Model
and with his Guardsmen-only theory; he likewise acknowledges that these cases
are inconsistent with the state's-rights-only theory.[53]

Professor Yassky then brings the reader to the Miller case, and uses the case to
argue for his "instrumental" and innovative reading of the Second Amendment.[54]
I am not sure that the Miller opinion can shoulder this burden.[55]
I cannot improve on the Miller summary by Professor Andrew McClurg:

But when all is said and done, the only certainty about Miller is that it failed to
give either side a clear‑cut victory.
Most modern scholars recognize this fact.For example Professor Eugene Volokh describes Miller as "deliciously
and usefully ambiguous" in an article about using the Second Amendment as a
teaching tool in constitutional law.[56]

Volokh follows the Standard Model, and signed
the Academics for the Second Amendment brief in Emerson; McClurg
disputes the Standard Model, and signed the Yassky brief in Emerson. As
their agreement about Miller illustrates, the case is a good starting
point for all kinds of theories, but it is hardly a conclusive, clear
endorsement of any theory.

Any theory that starts with Miller needs to be tested in the broader world
of the rest of the Supreme Court's jurisprudence. My article in this symposium
suggested that the Supreme Court's other writings are about the Second
Amendment are much more consistent with a Second Amendment right that can be
exercised by all peaceable citizens than with any other theory of the Second
Amendment.

Finally, Professor Yassky suggests that the scarcity of Supreme Court cases directly
addressing the Second Amendment deprives us of a vocabulary for meaningful
thought about the Second Amendment. Yassky illustrates his "meaningful dialogue"
point by showing how we discuss Equal Protection terms of Brown v. Board of
Education, rather than Plessey v. Ferguson, or discuss the First
Amendment in terms of Brandenburg v. Ohio rather than Debs and Schenck.[57]
His point is that Second Amendment legal dialogue is unusual because it so
often refers to first principles and original intent.

This point is overstated. Even in areas where the Supreme Court has extensive
caselaw (e.g., First Amendment Establishment Clause cases), recurrence to
fundamental principles and original intent is very common in Court decisions
and in legal arguments.

Yet in regards to the majority of inferior federal courts from 1970 to the present,
Professor Yassky is indisputably correct that the Supreme Court's failure to
establish a large body of case law has prevented the development of meaningful
dialogue.[58]
As Brannon Denning has explained, the opinions consist of little more than
lower courts quoting each other while making assertions about Miller
that the case (no matter how imaginatively read) cannot support.[59]

Fortunately, other writers have not been rendered incapable of meaningful thought. The
lively dialogue in the law reviews shows that legal scholars do not need
Supreme Court leadership in order to think constructively about a topic.
Zechariah Chaffee, Theodore Schroeder, and other scholars in the first decades
of the twentieth century wrote meaningful thoughts about the First Amendment
(thoughts which are today part of the First Amendment's Standard Model) even
though the Supreme Court provided no useful leadership on the subject.

Today's scholars of the Second Amendment Standard Model are better off than were
Chaffee and company; the Supreme Court's words about the Second Amendment have
been generally supportive of (and almost never inconsistent with) the Standard
Model, whereas Chaffee, Schroeder, and other First Amendment scholars had to
contend with a series of cases in the first decades of the twentieth century
that were directly opposed to a meaningful First Amendment.

The critiques of the Standard Model developed by David Yassky, Carl Bogus,[60]
and David Williams[61] are
thought-provoking; even though they are, I think, quite incorrect,[62]
they force Standard Model scholars to refine and improve the model. Should the
Supreme Court ever clarify Miller, and repudiate the Standard Model
dicta from dozens of other cases before and after Miller, and announce
that the Second Amendment is no barrier at all to federal gun prohibition
(except for guns belonging to National Guardsmen), it is likely that David
Yassky's sophisticated scholarship will play an important role in the decision.

[5].See David B. Kopel, The Second Amendment
in the Nineteenth Century, 1998 B.Y.U.
L. Rev. 1359 (quoting every word that listed authors and other
nineteenth century legal scholars wrote regarding the Second Amendment).

Professor
Yassky observes that, if the Standard Model is accurate, then the lower federal
court cases "are a shocking departure from the framer's intentions." Yassky,
supra n. 1, text at n. 45. Yassky asks "Why."
Id. The answer is the same reason that the Equal Protection clause of
the Fourteenth Amendment was judicially nullified in the late nineteenth and
early twentieth centuries, why the Free Speech clause of the First Amendment
was likewise nullified in the same period, and why Article I limits on
Congress's enumerated powers were nullified from the late New Deal until recently:
judges believed that the constitutional provision in question was contrary to
good policy, and so the judges invented specious rationales to evade the text
and intent of the Constitution.

Professor
Yassky explicitly rejects the "living Constitution" (a euphemism for a dead
constitution) theory that judges can excise parts of the Constitution they do
not like. Yassky, at n. 45. He writes
that "amendments to one part of the Constitution can have ramifications for
other parts." Id. I think he is
right. For example, as Akhil Amar writes, the Congress which wrote the
Fourteenth Amendment was not much concerned with protecting state militias
(which had just been defeated in the Civil War) from being disarmed; instead
the Congress was intensely concerned with protecting Freedmen (who were under
frequent assault by Ku Kluxers and other terrorists) from being disarmed by
racist state governments. Hence, the Congressional
discussions of the Fourteenth Amendment, the Civil Rights Act, and the
Reconstruction Act contained explicit statements about the need for statutes
and constitutional amendment to protect "the right to keep and bear arms" from
state infringement. Thus, write Amar,
"between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina
freedman." Amar, 9, at 266. The Fourteenth Amendment helped transform the Second Amendment into
the form in which it is most familiar to most Americans today—involving a right
to personal protection in the home (rather than a guarantee that militias could
resist federal tyranny).

[21].Yassky, 1, at n. 25.

[22].Glenn Harlan Reynolds, A Critical Guide to
the Second Amendment, 62 Tenn. L.
Rev. 461 (1995)(Second Amendment right is violated by gun bans, but not
by regulations such as background checks, as long as the regulations are
reasonably applied).

[23].Not, as Yassky writes, "confers." Yassky, 1, at 191. The Standard Model, like
the Cruikshank case, sees the Second Amendment as protecting a
pre-existing human right, rather than creating a new right. United States v.
Cruikshank, 15 (right to arms and right to assemble are
guaranteed but not created by the Constitution; they are found "found wherever
civilization exists"), discussed in Kopel, 3 text at notes
325-27.

[24].Kates, Handgun Prohibition, 18 .

[25].Yassky, 1, at n. 42.

[26].United States v. Emerson, 46 F. Supp. 2d 598
(Tex. 1999).

[27].Id.

[28].Amicus Brief for Academics for the Second
Amendment, United States v. Emerson, no. 99-10331 (5th Cir.)(the brief was filed
in December 1999; the case has not been decided, as of the date that this
article was written).The brief does not address
the issue of whether Congress has power under the Interstate Commerce clause to
ban the simple, non-commercial possession of a firearm by an individual. In a
revisionist article, which claims that many prior Supreme Court and lower court
cases were incorrectly decided, Glenn Reynolds and I suggest that the
Interstate Commerce Clause, according to the logical implications of the
Lopez case, and according to Constitutional plain language, should not be interpreted
to allow Congress to prohibit purely intrastate non-commercial activities—such
as possessing a firearm, cultivating marijuana for personal medical use, or
having an abortion with one technique rather than another. David B. Kopel &
Glenn Reynolds, Taking Federalism Seriously, 30 Conn. L. Rev. 59 (1997).

[29].Samuel Adams, Motion at the Massachusetts
Convention, Feb. 6, 1788, reprinted in
The
Origin of the Second Amendment: A Documentary History of the Bill of Rights
1787-1792, at 260 (David E. Young, ed., 1995)(emphasis added). In modern
usage, the comma after "United States" would make the reference to "peaceable
citizens" a non-restrictive clause, so that "peaceable citizens" would be read
as a compliment about "the people" rather than as a restriction on who may keep
arms. But as a quick glance at the Third Amendment shows, writers in the Early
Republic used commas in ways which are not always consistent with twenty-first
century style. Adams, by the way, voted against his own call for a Bill of
Rights, as part of the complex maneuvering around the issue of ratifying the
Constitution. Origin, at 263 n. 4.

[42].Id.
For an analysis of Herz's mean-spirited article, see Randy E. Barnett
& Don B. Kates, Under Fire: The New Consensus on the Second Amendment,
45 Emory L.J. 1139 (1996).

[43].See Kopel 3, at 173.

[44].Discussed in id., at 172.

[45].Yassky, 1, text at n. 34.

[46].E.g., Levinson, 11.

[47].Nelson Lund, The Past and Future of the
Individual's Right to Arms, 31 Ga.
L. Rev. 1 (1996).

[48].Kopel, 3, at 127.

[49].Yassky, 1, text at n. 32.

[50].This is the same as Harlan's structure: The
material in a thing (Fourteenth Amendment liberty) is not confined to the items
in a list (the Bill of Rights) such as (enumeration of items on the list).

[51].As Yassky writes a few paragraphs later, if
"the purpose of the Amendment is to enable states maintain militia," then "states are certainly free to decline to take advantage of this opportunity."
Yassky, 1, text at n. 34.

[52].Reynolds, 22 (noting that
"Standard Model" is a term of art in physics scholarship).

[53].Yassky, text at notes 12-22.

I
think Yassky understates how pervasive the state's-rights-only (as opposed to
Yassky's narrow individual right) right theory has been in lower federal court
decisions, and in the briefs filed by anti-gun groups and by U.S. Attorneys.
But the quanta of state's-rights-only argumentation is not really crucial to my
article, or to Yassky's reply; whatever the quantity of state's-rights
arguments, it is sufficient (for this article) simply to observe that Yassky is
right to point out that an important number of the Supreme Court cases which
are inconsistent with a states' only theory are compatible with Yassky's own
theory.

[54].The National Firearms Act of 1934, which was
at issue in Miller, was not, as Yassky writes, "the first federal gun
control law." In 1927, as a result of
the violence resulting from alcohol prohibition, Congress banned the mail order
sale of handguns.

[55].For example, Yassky points out, accurately,
that "military usefulness is the linchpin of Miller's reasoning."
Yassky, 1, text at n. 42.
Thus, pursuant to Miller, Standard Model scholars acknowledge
that a gun which had no militia utility but which was useful for recreational
purposes (perhaps a hunting rifle that was extremely accurate, but so fragile
as to be worthless under the rough handling typical of militiamen) would not
be protected by the Second Amendment. But Yassky goes much further, and argues
that Miller denies constitutional protection unless the purpose
of the arms-bearing is for militia service.
Id.Miller does
not compel such a restrictive reading. For example, under Miller, the
Beretta 92 pistol would be plainly protected, since it is the official sidearm
of the U.S. Army (and thus, obviously, useful in a militia). But Miller
does not necessarily deny protection to an individual who owns a Beretta 92 for
hunting, target shooting, or personal defense. The boot-legging defendants in Miller,
after all, were not possessing their sawed-off shotgun in order to serve in the
militia. Yet the Miller Court
focused on the type of gun, and the purposes of the possessors. The theory that
the right to arms protects only guns with militia utility, and these guns may
be possessed for any purpose by peaceable citizens, is precisely the theory
adopted by the main line of nineteenth century state cases, several of which
were cited with approval in Miller. See Kopel, The Second
Amendment in the Nineteenth Century, at 1416-33 (discussing state cases);
Kopel, 3 _____ (discussing Miller's use of the
nineteenth century cases).

[56].Andrew J. McClurg, Lotts' More Guns and Other Fallacies
Infecting the Gun Control Debate, 11 J.
Firearms & Pub. Pol. 139, 149‑150 (1999), citing
Eugene
Volokh, Robert J. Cottrol, Sanford
Levinson, L.A. Powe, Jr., Glenn H. Reynolds, The Second Amendment As Teaching Tool in
Constitutional Law Classes, 48 J. Legal
Educ. 591, 604 (1998)(each of the named authors in the Journal of
Legal Education article wrote a separate essay, and the essays were
combined under a single title; the quoted portion is from Volokh's essay).

[57].Yassky, 1, text at notes
46-54.

[58].The same might be said of the Tenth
Amendment, a subject on which Supreme Court case law has been sparse, until
recently.

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